Labour Market Testing (LMT) is an integral part of certain visa categories. As life has returned to normalcy post-COVID, a number of Australian businesses are looking to employ skilled foreign workers to reside and work in Australia. The businesses are willing to sponsor the skilled foreign workers under the Temporary Skills Shortage (TSS) Visa (Subclass 482) and the Skilled Employer Sponsored Regional (Provisional) Visa (Subclass 494). 

‍

Under these visa categories, it is mandatory for businesses to conduct LMT before they begin sponsoring foreign skilled workers. Conducting a correct LMT process is of extreme importance, otherwise, there may be chances of the business’s nomination application being refused by the Department of Home Affairs (DHA). 

‍

LMT Overview

‍

In other words, LMT can be considered a type of recruitment campaign, wherein Australian businesses first test the Australian job market to find out whether there are qualified Australian citizens or permanent residents for the job role. The rationale behind this is that the business will have to demonstrate that the job position cannot be filled by an Australian citizen or permanent resident, thus requiring sponsorship of skilled foreign workers. 

‍

The requirements for effective LMT are: 

‍

• At least 2 advertisements must be placed by the business/employer: ‍
• The role may be advertised within the same medium (e.g. newspaper) on 2 different occasions or within 2 different mediums simultaneously or separately ‍
• The advertisement must also be placed on the Government Workforce Australia website:‍
• Platforms such as Seek, JORA and Indeed are suitable for posting advertisements‍
• The advertisement must be worded in English and run for at least 4 weeks 
• The advertisement must contain information such as: ‍
• The title and a description of the role 
• The skills and experience required 
• The business/employer’s details 
• The salary of the role ‍
• The LMT must have taken place no more than 4 months before the business/employer files for a visa nomination 

‍

It is important to note that posting the advertisement on platforms such as Twitter, Facebook, Instagram or Gumtree will not be acceptable.

‍

Business owners must provide a copy of the job advertisements and prove to the DHA that the advertisements were live for at least 1 month (28 days). They will also be required to provide a recruitment activity report of the responses they received for the job advertisement. An explanation of why the respondents were not suitable for the job role may also be asked of the business owner. This evidence must be provided at the time of the application, failure to do so may lead to the refusal of the nomination. 

‍

Global Talent Employer Sponsored (GTES) LMT 

‍

There are specific criteria for businesses sponsoring skilled foreign workers under a GTES agreement. Business owners must provide evidence of both advertisement attempts for each specific occupation. These attempts must have been conducted in the last 12 months before lodging a nomination application. 

‍

The DHA has provided examples of LMT for the GTES stream to give businesses a better idea. 

‍

Recruitment websites (e.g. LinkedIn)

‍

• Invoices for recruitment subscription services 
• Job posting data metrics 
• Copy of job advertisement 

‍

Business’s own website 

‍

• Copy of job advertisement 

‍

Executive search firms (headhunting) 

‍

• Fees or invoices for recruitment services 
• Summary of the search undertaken 
• A contract between the company and the executive search firm 

‍

Networking or referrals

‍

• Written referral or endorsement by industry leaders/experts in their field explaining why the specific individual overseas is the only person or one of the very few people who can undertake the nominated position, and no Australian worker is available

‍

LMT Exceptions 

‍

Exceptions to LMTs may only be applicable in the case of international trade obligations. The current obligations are as follows: 

‍

• The nominated skilled worker is a citizen/national of Japan, China, Mexico, Thailand or Vietnam
• The nominated skilled worker is a citizen/nation/permanent resident of Canada, Chile, New Zealand, South Korea or Singapore
• The nominated skilled worker is a senior manager for intra-company transfers from WTO countries, who is: ‍
• Responsible for the entire or a substantial part of the company’s operation in AU 
• Responsible for the establishment of a new operation of that business in AU ‍
• Intra-company transfers where the nominated skilled worker is currently employed in any of the countries listed above, or an ASEAN (Brunei, Indonesia, Cambodia, Myanmar, Laos, Thailand, Vietnam, Malaysia, Philippines) nation
• The nominated skilled worker is a citizen of a WTO member country who is nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for 2 years immediately before the nomination is lodged

‍

Disclaimer: Kindly note that the information provided here does not constitute legal advice. This must solely be regarded as content that provides general immigration information and is not a substitute for professional legal advice that occurs between an immigration lawyer and a client.

Path Migration strongly recommends readers contact certified immigration lawyers for a holistic overview of the Australian immigration system and a detailed analysis of each case.

‍